Capital Punishment – The Need and Way Forward

Standing in the Colosseum of ancient Roman Empire and entering the Breaking wheels of Bavaria;

Chopped by Slow slicing of China and grooming by guillotine in France;
Being stoned in Saudi Arabia and getting lethally injected in USA;
The Capital punishment has evolved through various forms practices since time immemorial; It faced diverse arguments from abolitionists and retentionists in the past century. As many as 140 nations abolished it due to its inhuman nature. But still 59 nations find validity in its existence, with India one among them.
In this blog we will analyse the various dimensions around the capital punishment in Indian context and the global arguments for and against it.
Contents

What is Capital Punishment
Capital Punishment in India
Mercy Plea
Judicial Evolution of doctrine for Death Penalty
Law Commission Report on Death Penalty
International Scenario
Arguements in Favour of Death Penalty
Arguements Against Death Penalty

 What is Capital Punishment?

Capital Punishment is legally authorised or government sanctioned practice of putting a person to death as a retributive punishment for a crime committed. It is only applied in cases where the crime is of such nature that it cannot be vitiated without a penalty of death.

Capital Punishment in India

In colonial India, death was prescribed as one of the punishments in the Indian Penal Code, 1860 (IPC). It remained in effect after independence in 1947. The first hanging in Independent India was that of Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination case. Since then 52 people have been executed in India till date according to Official Government of India Statistics. However the numbers are matter of dispute, since National Law University claims 755 executions.
Indian Penal Code,1860 and its amendments, sanction death penalty in following cases
 

Section under IPC Nature of Crime
121 of IPC Waging or attempting to wage war against Government of India
132 of IPC Abetting or Engaging in mutiny of armed forces
302 of IPC Murder
376A of IPC Rape if the perpetrator inflicts injuries that result in the victim’s death or incapacitation in a persistent vegetative state, or is a repeat offender
*The list is selective and not exhaustive

 
Apart from Indian Penal Code, Parliament of India has enacted various laws with few sections which sanctions death penalty like,

22 Legislations and 12 Sections of IPC
Number of Laws that Sanction Death Penalty

Mercy Plea

The Indian Constitution provides for clemency of capital punishment by the President of India and Governor of respective State. Once the Sessions Court has awarded death sentence to a convict in a case, it must be confirmed by the High Court. The convict can also appeal to the Supreme Court. If this too fails, the accused has the option of submitting a ‘mercy petition’ to the President of India and the Governor of the State. Ministry of Home Affairs is nodal agency to aid and advice the president in this regard and it has given a detailed procedure for the same.
Article 72 of the Constitution of India says:
“Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases-
(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence                  
(a) in all cases where the punishment or sentence is by a court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death
(2) Nothing in sub clause (a) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.”
Similarly the pardoning powers of the Governor of a State are mentioned in Article 161 of the constitution. The object of conferring the power to the president and governor is twofold,

  • To keep the door open to correct the judicial errors in the operation of law
  • To afford relief from a sentence, which the president regards unduly harsh.

 

Judicial Evolution of Doctrine for Death Penalty

Indian Judiciary has taken a proactive role in various circumstances to define a doctrine to award a death penalty. The first test to constitutionality of capital punishment came up during Jagmohan Singh vs State of UP, 1973.  In this case Supreme Court upheld the death penalty as constitutionally valid.  It also adjudicated that death penalty is not in contravention to Article 21  (Right to Life) of the constitution, as it is pronounced by procedure established by law.
In  Rajendra Prasad vs State of UP,1979 Supreme court viewed death penalty with cautious approach by stating that it can be granted only in special circumstances.
These two instances paved way to the landmark judgement in Bachan Singh vs Sate of Punjab in 1980 where the Supreme Court propounded the “rarest of rare” doctrine and since then, life sentence is the rule and the death sentence the exception. But there is no statutory definition of “rarest of rare”.
To decide whether a case falls under the category of rarest of rare case or not was completely left upon the court’s discretion. However, the apex court laid down a few principles which were to be kept in mind while deciding the question of the sentence. One of the very important principles is regarding aggravating and mitigating circumstances.  Repetitive offence by convict, vulnerability of victim, brutal or uncommon nature of crime is generally the aggravating circumstances whereas lack of criminal record on convict, culpability of victim, extreme mental conditions are considered mitigating circumstances.
It has been the view of the court that while deciding the question of sentence, a balance sheet of aggravating and mitigating circumstances in that particular case has to be drawn. Full weightage should be given to the mitigating circumstances and even after that if the court feels that justice will not be done if any punishment less than the death sentence is awarded, then death sentence should be imposed. In Machhi Singh vs State of Punjab, 1983 it proposed detailed guidelines for rarest of rare doctrine.

Law Commission Report on Death Penalty

Law Commission in its report No. 262 has recommended abolition of death penalty in all crimes except terrorism-related cases and waging war against the state for purpose of “National Security”. It further recommended parliament to bring an abolition law for the same.

Masood Azhar, founder of terrorist organisation Jaish-e-Mohammed was arrested in 1994. Indian airlines flight was hijacked in 1999 and it was landed in Kandahar, Afghanistan. Hijackers demanded the release of Azhar. He was freed in exchange of hostages. These instances support the argument in favour of death penalty against the terrorists in interest of national security.
As per the report, the excessive use of the death penalty is clear. It indicates that between 2000- 2015, trial courts imposed the death sentence on 1790 persons. Of these, 1512 cases were decided by the High Court. The remaining are either still pending, or their judgments have not been located. In 62.8% of these 1512 cases, the appellate courts commuted the sentence. That is, though the appellate courts agreed with the trial court on conviction, they rejected the court’s sentencing. In another 28.9 % of the cases where the trial court awarded the death sentence, or roughly a third, ended in acquittal, pointing to an even deeper systemic problem relating to the quality of adjudication in the lower courts. In all, the death sentence was confirmed only in 4.3% of the cases. The Supreme Court’s data thus shows that trial courts erroneously impose the death penalty in 95.7% cases. There are many other cases where the judges disagreed with each other.

Death Penalty Cases from Trail Court in India
Death Penalty Cases from Trail Court in India

International Scenario

According to Amnesty International report, 140 nations have abolished death penalty for all crimes and 59 nations still retain it. All western countries except USA have abolished death penalty mainly on humanitarian grounds.
In 2017, most known executions took place in China, Iran, Saudi Arabia, Iraq and Pakistan. China remains the world’s top executioner – but the true extent of the use of the death penalty in China is unknown as this data is classified as a state secret. Excluding China, 84% of all reported executions took place in just four countries – Iran, Saudi Arabia, Iraq and Pakistan.  Amnesty International recorded at least 993 executions in 23 countries in 2017, down by 4% from 2016 (1,032 executions) and 39% from 2015 (when the organization reported 1,634 executions, the highest number since 1989).
United Nations Moratorium on death penalty was passed by UN General Assembly in 2007 which calls for abolition of capital punishment throughout the world. 104 nations voted for it and 54 against it including India.

Death Penalty in 2017 : The Global Picture
Death Penalty in 2017 : The Global Picture

 

Arguments in Favour of Death Penalty

Retribution

The principle of retribution states that all guilty people deserve to be punished and punishment should be in proportion to the severity of the crime committed. It builds upon the notion that people should suffer for their wrongdoings. Eighteenth-century philosopher Immanuel Kant defended a more extreme position, according to which every murderer deserves to die on the grounds that loss of life is incomparable to any jail term.
Some abolitionists argue that retribution is simply revenge and cannot be condoned. Others, while accepting retribution as an element of criminal justice nonetheless argue that life without parole (Life Imprisonment) is a sufficient substitute.

Deterrence

The idea of deterrence relies on fact that severe punishments like death penalty will deter the larger public from committing the crime. However deterrence is effective tool only if execution is carried out in immediate effect. Delay in judicial proceedings will become counterproductive to deterrence.
However, there is no empirical evidence that death penalty is effective deterrent for heinous crimes as the situational predicaments drive the crime.

Spiritual Rehabilitation

Though death penalty doesn’t give an opportunity for rehabilitation to the convict, it provides a chance for the convict to repent, express remorse and experience spiritual rehabilitation before the execution.

 Vindication and Closure to victim and family

It is often argued that death penalty provides vindication and justice to victim for his or her sufferings and ensures closure to victim’s family. However there are instances where some families do not feel that another death will provide closure.
For instance in 2017 , the father of pizza delivery man in Kentucky, forgave the murderer of his son and hugged him in court. Incidents like these goes against the argument of vindication and closure.

Prevention of reoffending

It prevents recommitting of crimes by repetitive offenders. Convicts of brutal rape and grotesque crimes are capable of repeating the crime after their prison term. As discussed above, terrorists like Masood Azhar, who had to be released in a flight hijack situation went on to become the mastermind behind the terror attack against Parliament of India in 2001.
Hence death penalty against heinous offenders eventually saves many other lives in future.

 Public Conscience

In the aftermath of 2012 Delhi gang rape case, there was a strong demand all over the nation in favour of capital punishment for the convicts of gang rape. The crime was brutal, grotesque and fatal that whole nation’s conscience was in favour of capital punishment.

Arguments against Death Penalty

Reformative Justice

Death of a convict doesn’t give a chance for realization of mistake, reformation of convict and rehabilitation back into society. Reformative justice system is mark of progressive society of civilized nature when compared to retributive justice system.

Risk of Execution of Innocent

There exists a huge risk of execution of an innocent person due to a judicial mistake. Witnesses, prosecutors and jurists can all make mistakes. When this is coupled with flaws in the system, it is possible that innocent people will be convicted of crimes and death is irreversible.
Capital punishment was abolished in the United Kingdom in part because of the case of Timothy Evans, an innocent man who was hanged in 1950 after being wrongfully convicted of two murders that had been committed by his neighbour.

Lack of Deterrence

One of the arguments for the retention of death penalty is that it has a deterrence value and prevents individuals from committing crimes because of the threat of punishment. However there is no empirical evidence to suggest that the death penalty has a deterrent effect over and above its alternative, life imprisonment. Even if capital punishment did act as a deterrent, is it acceptable for someone to pay for the predicted future crimes of others?
Evidence from states of USA suggests that, homicide rates in states which abolished death penalty is lesser compared to countries which retains death penalty.

Right to Life
Death penalty violates the right to life which happens to be the most basic of all human rights. It also violates the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment. Furthermore, the death penalty undermines human dignity which is inherent to every human being.

Racial, Ethnic and Social Class Bias

Opponents of the death penalty argue that this punishment is being used more often against perpetrators from racial and ethnic minorities and from lower socioeconomic backgrounds, than against those criminals who come from a privileged background; and that the background of the victim also influences the outcome.
According to Law commission report, In India of 373 prisoners on death row in the country, over 75% belong to backward classes and religious minorities. 93.5% of those sentenced to death for terror offences are religious minorities or Dalits. The data also showed that nearly 74% of convicts were economically vulnerable. Hence death penalty has inherent bias towards religious minorities and socially downtrodden.
Eye for an Eye will make this world blind said Mahatma Gandhi. He fell to assassin​s’​ bullets, but his two sons appealed to the government of the day, saying that Nathuram Godse and Naray​a​n Apte should not be hanged, because Gandhiji was opposed to death sentence.
The architect of the Constitution, Babasaheb Ambedkar, admitted in the Constituent Assembly that “people may not follow non-violence in practice but they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can.” With this in mind, he said, “the proper thing for this country to do is to abolish the death sentence altogether.”  Considering the legal, ethical and psychological underpinnings of death penalty, India-the land of ahimsa must move forward in accordance with the roadmap stipulated by The Law Commission of India.

Life is gift of Nature, so as Death. Hence any death against the will of nature is murder. On these lines, Death penalty is judicially sanctioned murder.